Tyler v. Chesapeake & O. R. Co

• Decision Date: 13 November 1891
• Citation: 13 S.E. 975,88 Va. 389
• Court: Virginia Supreme Court
• Parties: Tyler v. Chesapeake & O. R. Co.

13 S.E. 975

88 Va. 389

Tyler

v.Chesapeake & O. R. Co.

Supreme Court of Appeals of Virginia.

Nov. 13, 1891.

Actions against Railroad Companies—Instructions — Province of Jury — Personal Injuries.

Plaintiff and two other boys obtained permission from a section-master, who was going with the sectionmen on a hand-car to load some scrap-iron, to go with him if they would assist in loading the iron. On their return the handcar collided with a rapidly moving train. Plaintiff was injured, and sued the railroad company. He asked the court to charge that, if the section master was in the habit of employing and discharging the men under him, and was in control of the said car, and plaintiff was on the car by his permission, and without knowing that it was contrary to the rules of the company, and the injuries sustained by him resulted from the gross negligence of defendant, he was entitled to recover, and that the relation between a section master and the men under him was that of superior and subordinates; and that, if one employed by the section-master was injured by the section-master's negligence, the company could nut escape liability on the ground that the injured party was a co-employe. Tho court rejected the instructions of plaintiff as calculated to mislead the jury, and as inapplicable to the evi dence. It then charged that, although plaintiff was permitted-to ride on the hand-car, upon condition that he would assist in loading the said iron, this did not make him an employe, so as to obligate the companyto protect him from injury; and that, unless defendant authorized the section-master to permit him so to ride, the jury must find for the defendant. Held, that the said rulings were an invasion of the province of the jury, in assuming to decide for them questions of fact, and in directing their verdict. Faun-tleroy, J., dissenting.

This was an action by Tyler, an infant, by his next friend, against the Chesapeake & Ohio Railroad Company, to recover for personal injuries. There was judgment for defendant, and plaintiff brings error.

Reversed.

T. C. Elder and 67. M. Cochran, foi plaintiff in error.

R. L. Parrish and W. J. Robertson, for defendant in error.

Lacy, J. This is a writ of error to a judgment of the circuit court of Augusta county, rendered on the 22d of November, 1890. The action was by an infant, by his next friend, in trespass on the case, for injuries, against the defendant company. Upon the trial the demurrer was sustained by the court to the fifth count of the plaintiff's declaration, and the same overruled. As to the other four counts of the declaration evidence was taken ou both sides, and the court gave certain instructions, and the jury, by their verdict, found for the defendant under the instructions of the court, and judgment was rendered on the verdict for the defendant, and, he having excepted to the several rulings of the court refusing instructions asked for by him, and giving others for the defendant, the plaintiff moved the court to set aside the verdict and grant him a new trial, upon the ground that the court had misin-structed the jury as to the law, which motion the court overruled, and theplain-tiff applied for and obtained a writ of error to this court. The case, briefly stated, is as follows The plaintiff, a boy less than 17 years of age, in company with another boy, whose age is not stated, was joined by another boy, 14 years of age, and encountered a section-master of the defendant company, who had a hand-car and some hands going a few miles out on the railway, west of the city of Staunton, to do some work in gathering up scraps of iron and some heavy frogs which had been left out in recent track repairs. It was agreed between the plaintiff and the other boys on the one hand and the section-master on the other that these boys could ride on the hand-car to the point indicated if they would work like other hands in gathering up the iron in question. This was agreed to, and, the iron having been collected and loaded on the hand-car, except heavy frogs, which were loaded on a freight train, the hand-car started back in command of the section-master, and, by putting forward a flagman, and stopping a freight train they encountered on the way, and unloading the hand-car and taking the same off the track, it escaped collision. But, loading up again, and starting towards Staunton, the grade descending, and the hand-car heavy with the iron, the speed became greater than is usual on hand-cars, —25 miles an hour, —and, no flagman being out, and no brakes on the hand-car, except a stick held by the section-master, they encountered a train running rapidly out of Staunton, flat-ear in front, and, the shock occurring almost without warning, the other parties jumped off, but the plaintiff was struck and injured, as were others who jumped, and three men were killed on the flat-car on the train, and nothing was found of the hand-car but one wheel. The plaintiff was seriously injured, and the evidence tends to show that theso were permanent injuries. He has, accord-ing to that, lost the use of his right arm, which might freeze or mortify without his knowing it: and his head has been so injured by the hurts he received that they are worse than those in his limbs. He is unfitted for any business requiring a strong mind or strong body. He is blighted every way in body and mind. The accident happened at a critical period of his life, and seriously interfered with his development, and he never can be the man he would have been if he had not sustained the injuries proven in the case.

The plaintiff asked the court to instruct the jury: "(1) If thejury shall believe from the evidence that at the time of the collision which resulted in the injuries to the plaintiff of which he complains in this action, G. C. Ellis...